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Court of Criminal Appeal 24 September 2010

AS v Regina

[2010] NSWCCA 218

Assault & violence
CRIMINAL LAW APPEAL CONVICTION SUMMING UP FAILURE TO PUT DEFENCE CASE TO JURY CRIMINAL LAW

Citation: AS v Regina [2010] NSWCCA 218
Court: New South Wales Court of Criminal Appeal
Date: 24 September 2010
Judges: McColl JA, Hulme J, Latham J

Background

The appellant was convicted by a jury in the District Court on five counts arising from a violent incident in St Marys on 6 May 2006. The counts included inflicting grievous bodily harm with intent, malicious wounding with intent, two counts of assault occasioning actual bodily harm in company, and affray. The appellant and two co-accused were alleged to have participated in a joint criminal enterprise to attack a group of men who had attended a nearby party.

The Crown's case against the appellant rested substantially on the evidence of a single witness, Emily Spillane, who was present at the Adelaide Street house where the alleged offenders had gathered. She gave evidence that she was "pretty sure" she had heard the appellant state an intention to fight the victims, and that she saw him pick up a barbell and leave through the back gate with three other men. The Crown also relied on DNA evidence matching a victim's profile found on the appellant's shorts.

The appellant challenged both the adequacy of the trial judge's summing-up and the reasonableness of the jury's verdicts. The other co-accused was acquitted at trial, and the trial judge directed a verdict of acquittal in favour of a third co-accused.

  • Whether the trial judge failed to properly put the defence case to the jury, including failing to direct the jury on the central role of the key witness's evidence and its qualified terms.
  • Whether the jury's verdicts were unreasonable or unsupportable on the evidence, given the uncertainty in the key Crown witness's identification of the appellant.

Decision

On the first ground, the Court of Criminal Appeal found that the trial judge had not put the critical elements of the defence case to the jury at all, let alone fairly. The Crown itself conceded that the summing-up contained no direction explaining how Ms Spillane's evidence was relied upon to establish the appellant's participation in the joint criminal enterprise across all five counts. The trial judge had also refused an application to direct the jury's attention to the fact that Ms Spillane had said words to the effect of "I don't remember" on approximately 38 occasions during her evidence.

On the second ground, the Court found that Ms Spillane's evidence was incapable of sustaining a finding beyond reasonable doubt that the appellant was the person who expressed an intention to fight and picked up a barbell. Her evidence was expressed in uncertain terms throughout, including during cross-examination and re-examination, where she could not recall exact words or specific details. The Crown ultimately conceded at the hearing that it had no evidence available that could realistically implicate the appellant to the requisite standard of proof.

The Court was satisfied that the other evidence led at trial, including the DNA evidence, could not cure this fundamental deficiency. The DNA established proximity to the victim when he was struck but could not independently establish participation in a joint criminal enterprise. Accordingly, the Court allowed the appeal and directed verdicts of acquittal rather than ordering a new trial, the Crown having abandoned its earlier submission that a retrial should be ordered.

Orders Made

  • Appeal allowed.
  • Convictions quashed.
  • Verdict of acquittal directed on each count.

Key Takeaways

  • Where the Crown case against an accused rests substantially on the evidence of a single witness, the trial judge must direct the jury clearly on how that evidence is relied upon to establish the elements of each count. Failure to do so constitutes an error in the summing-up.
  • A trial judge's failure to put the defence case to the jury, including the frailties in the key Crown witness's recollection, was accepted by the Crown in this case as a material deficiency in the directions given.
  • Evidence expressed in qualified or uncertain terms ("pretty sure", "I don't remember") can be incapable of sustaining a conviction beyond reasonable doubt, particularly where identification of the accused as the perpetrator is the central factual issue.
  • The Court of Criminal Appeal directed acquittals rather than a retrial where the Crown conceded it could not realistically produce evidence implicating the appellant to the requisite standard, even having regard to the witness's original police statement and her illness during trial.
  • DNA evidence placing an accused near a victim at the time of an assault does not, without more, establish participation in a joint criminal enterprise to commit that assault.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(a), 33(1)(b), 59(2), 93C(1)
- Criminal Procedure Act 1986 (NSW)
- Criminal Appeal Rules (NSW)

Cases
- Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
- R v Abusafiah (1991) 24 NSWLR 531
- R v Meher [2004] NSWCCA 355
- RPS v R [2000] HCA 3; (2000) 199 CLR 620
- Tripodina & Morabito v R (1998) 35 A Crim R 183